Regulation or resistance? A counter-narrative of constitutional criminal procedure

Boston University Law Review

Volumn 95, Issue 5, 2015, Pages 1555-1617

  Ristroph, Alice ^a  

^a SETON HALL UNIVERSITY   (United States)

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EID: 84964336571     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (277)

1. For a helpful aggregation of statistics on Fourth Amendment cases from 1959 through 2009, see Thomas Y. Davies, The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment "Search and Seizure Doctrine", 100 J. Crim. L. & Criminology 933, 1040-41 tbl.l (2010);
2. see also Hudson v. Michigan, 547 U. S. 586, 613 (2006) (Breyer, J., dissenting) (stating that the Court decided 332 Fourth Amendment cases between 1914 and 2002);
3. TRACEY MACLIN, THE SUPREME COURT AND THE FOURTH AMENDMENT'S EXCLUSIONARY RULE xi (2013) (claiming that the Fourth Amendment is the most frequently litigated constitutional provision).
4. See, e.g., United States v. Leon, 468 U. S. 897, 906-08 (1984) (describing the scope of the exclusionary rule in Fourth Amendment cases). I discuss these separate doctrinal exclusionary rules in Part III.
5. See Davis v. United States, 131 S. Ct. 2419, 2426-28, 2432-33 (2011) (narrowing justifications for the exclusionary rule, and dismissing the concern that limitations on exclusion will create disincentives to litigate Fourth Amendment claims);
6. Herring v. United States, 555 U. S. 135, 140-42 (2009) (limiting application of exclusionary rule and listing its costs);
7. Hudson, 547 U. S. at 591 (characterizing suppression of evidence as a "last resort" and listing "substantial social costs" of exclusionary rule);
8. See, e.g., Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 506 (2007) (characterizing Fourth Amendment jurisprudence as efforts to "distinguish police practices needing... regulation from those that do not");
9. Seth W. Stoughton, The Incidental Regulation of Policing, 98 Minn. L. Rev. 2179, 2185 (2014) (listing Fourth Amendment doctrine as an example of "rules and restrictions that exist exclusively or primarily to regulate police conduct");
10. William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 393, 433 (1995) ("The main point of [Fourth and Fifth Amendment law] is to regulate the police.");
11. but see Thomas Crocker, The Political Fourth Amendment, 88 WASH. U. L. Rev. 303, 308 (2010) (critiquing the tendency to "view the Fourth Amendment primarily as a special provision of constitutional criminal procedure designed to regulate police practice").
12. See, e.g., Jennifer E. Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure, 110 COLUM. L. REV. 1002, 1004 (2010) (describing the dual functions of the Fourth Amendment).
13. See John Rappaport, Second-Order Regulation of Law Enforcement, 103 Calif. L. Rev. 205, 210-12 (2015) (arguing that the Supreme Court should sometimes engage in "second-order regulation" by creating incentives for policymakers, rather than undertaking "first-order regulation" by devising rules directly for police officers).
14. See D. Michael Risinger & Leslie C. Risinger, Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure, 56 N. Y. L. Sch. L. REV. 869, 878 (2011-2012) ("Whichever way one cuts it, the Founding Fathers would barely recognize pretrial procedure in criminal cases as they exist today, and they would be profoundly shocked by some aspects of it.");
15. Christopher Slobogin, Transnational Law and the Regulation of the Police, 56 J. LEG. EDUC. 451, 451 (2006) (describing "courses that focus on the regulation of the police").
16. See Mary D. Fan, The Police Gamesmanship Dilemma in Criminal Procedure, 44 U. C. Davis L. Rev. 1407, 1409-17 (2011).
17. See Shima Baradaran, Rebalancing the Fourth Amendment, 102 Geo. LJ. 1, 15-16 (2013) (observing that when the Supreme Court balances government interests with individual interests to decide Fourth Amendment issues, the government wins about eighty percent of the time).
18. Cf. Guyora Binder, Punishment Theory: Moral or Political?, 5 BUFF. CRIM. L. REV. 321, 321 (2002) ("Punishment is never the isolated act of an individual: to punish is to act as an officer or agent participating in a system for enforcing an authoritatively promulgated norm.");
19. Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749, 794 (2003) ("[I]f we paid more attention to how power is allocated between [law enforcement] agents and prosecutors, we might better protect criminal defendants' interests- and perhaps even their rights.").
20. See, e.g., Ferguson v. City of Charleston, 532 U. S. 67, 75 n. 7 (2001) ("[I]n limited circumstances, a search unsupported by either warrant or probable cause can be constitutional when 'special needs' other than the normal need for law enforcement provide sufficient justification. ");
21. City of Indianapolis v. Edmond, 531 U. S. 32, 37 (2000) ("A search or seizure is ordinarily unreasonable in the absence of individualized suspicion.... [W]e have upheld certain regimes of suspicionless searches where the program was designed to serve 'special needs, beyond the normal need for law enforcement.'").
22. See Richard H. McAdams, Dhammika Dharmapala & Nuno Garoupa, The Law of Police, 82 U. Chi. L Rev. 135, 135 (2015).
23. See Kastigar v. United States, 406 U. S. 441, 453 (1972) (claiming that the "sole concern" of the privilege against self-incrimination "is to afford protection against being 'forced to give testimony leading to the infliction of 'penalties affixed... to criminal acts""
24. (quoting Ullmann v. United States, 350 U. S. 422, 438-39 (1956)));
25. Brown v. Walker, 161 U. S. 591, 595 (1896) (distinguishing between a "literal" interpretation of the Fifth Amendment that prohibited compelled testimony under any circumstances, and an alternative view in which "the object of the provision [is] to secure the witness against criminal prosecution," and adopting the latter view);
26. see also Chavez v. Martinez, 538 U. S. 760, 766-67 (2003) (plurality opinion) (finding that Fifth Amendment could not have been violated when suspect was arguably compelled to incriminate himself, but no charges were filed and no statements were introduced in any criminal prosecution).
27. See, e.g., Rothgery v. Gillespie Cty., 554 U. S. 191, 198 (2008);
28. Brewer v. Williams, 430 U. S. 387, 401 (1977) ("[0]nce adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.");
29. See generally Herbert Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964).
30. See, e.g., W. KIP VISCUSI, REGULATION THROUGH LITIGATION (2002).
31. See Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55 Ariz. L. Rev. 997, 1000 (2013) ("[People] take steps to thwart police surveillance, not because they are seeking to conceal criminal acts, but out of ideological belief or personal conviction. ").
32. See Jenny Carroll, The Resistance Defense, 64 Ala. L. Rev. 589, 592 (2013) ("Instead of seeking shelter in the protections afforded them by the Constitution, these defendants opted out. To these defendants, the right to a defense-a right integral to the American legal system-was the right to a sanctioned, bound narrative. And they wanted no part of it.").
33. Robert M. Cover, Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 6-11 (1983).
34. Cf. Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. Rev. 1, 2 (1979) ("Judges have no monopoly on the task of giving meaning to the public values of the Constitution, but neither is there reason for them to be silent.... Adjudication is the social process by which judges give meaning to our public values.").
35. See, e.g., I. Bennett Capers, The Unintentional Rapist, 87 WASH. U. L. Rev. 1345, 1351-53 (2010) (describing the decline of the "resist to the utmost" requirement). Indeed, there are striking parallels between the widely discredited concepts of consent in older rape law and the concepts of consent still embraced in constitutional criminal procedure.
36. See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 27-28 (1993) ("Colonial justice was a business of amateurs. Amateurs ran and dominated the system. Today, professionals call the shots.... Nothing of the sort existed in the seventeenth century.");
37. Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 830-32 (1994) ("Our twentieth-century police and even our contemporary sense of 'policing' would be utterly foreign to our colonial forebears.").
38. see also Wesley Oliver, The Neglected History of Criminal Procedure, 1850-1940, 62 Rutgers L. Rev. 447, 459 (2010).
39. See, e.g., Brown v. Mississippi, 297 U. S. 278, 279 (1936) (applying the Fourteenth Amendment to reverse convictions "which rest[ed] solely upon confessions shown to have been extorted by officers of the state by brutality and violence");
40. see also William J. Stuntz, The Collapse of American Criminal Justice 199-209 (2011) (describing the Supreme Court's Prohibition-era protections for civil liberties as well as the Court's use of the Due Process Clause to respond to "Jim Crow justice");
41. U. S. 643 (1961).
42. Wolf v. Colorado, 338 U. S. 25, 27-28 (1949) ("The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.").
43. See Mapp, 367 U. S. at 654-55.
44. Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather than an "Empirical Proposition"?, 16 Creighton L. Rev. 565, 597 n. 204 (1983).
45. U. S. 616 (1886).
46. Mapp, 367 U. S. at 646-47
47. (quoting Boyd, 116 U. S. at 630) (emphasis added).
48. See Weeks v. United States, 232 U. S. 383, 391 (1914)
49. (quoting Boyd, 116 U. S. at 630);
50. See Mapp, 367 U. S. at 660.
51. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CALIF. L. REV. 929, 954 (1965).
52. In addition to Mapp, some of the decisions that drew Friendly's concern were: Escobedo v. Illinois, 378 U. S. 478 (1964) (reversing conviction of defendant who was denied the opportunity to consult with his counsel and had no warning of his constitutional right to remain silent);
53. Ker v. California, 374 U. S. 23 (1963) (incorporating the Fourth Amendment's protections against illegal search and seizure to admit only evidence found with probable cause);
54. Wong Sun v. United States, 371 U. S. 471 (1963) (excluding evidence obtained subsequent to constitutional violations and characterizing such evidence as "fruits of a poisonous tree");
55. and Rochin v. California, 342 U. S. 165 (1952) (finding evidence inadmissible under the Due Process Clause because it was discovered through forced entry into defendant's home).
56. U. S. 1 (1968).
57. U. S. 436 (1966).
58. See Yale Kamisar, How Earl Warren's Twenty-Two Years in Law Enforcement Affected His Work as Chief Justice, 3 Ohio St. J. Crim. L. 11, 12 (2005).
59. Terry, 392 U. S. at 9-10.
60. The third, Katz v. United States, 389 U. S. 347 (1967), introduced the "reasonable expectations of privacy" analysis that became central to Fourth Amendment jurisprudence.
61. See Terry, 392 U. S. at 17.
62. Miranda v. Arizona, 384 U. S. 436, 510 (1966) (Harlan, J., dissenting) ("The Court's opinion in my view reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. ");
63. Miranda, 384 U. S. at 457 (finding the current "interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner").
64. Arguably, this was the Court's approach in Bram v. United States, 168 U. S. 532, 557-58 (1897).
65. See Miranda, 384 U. S. at 467 ("Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings...from being compelled to incriminate themselves.").
66. This view was reinforced by Chavez v. Martinez, 538 U. S. 760 (2003) (plurality opinion), in which a plurality of the Court found no Fifth Amendment violation in police questioning that failed to follow Miranda's guidelines but did not produce a statement that was introduced in a criminal trial.
67. U. S. 201 (1964).
68. Though Massiah involved federal law enforcement officers, its holding applied to local and state police officers as well, since the Sixth Amendment right to counsel had previously been incorporated in Gideon v. Wainwright, 372 U. S. 335, 344-45 (1963).
69. Carol S. Seiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2470 (1996).
70. See, e.g., Hudson v. Michigan, 547 U. S. 586, 591 (2006) (discussing the social costs of the exclusionary rule and why it is cautiously applied);
71. Cf Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L. J. 229, 230 (2006) (characterizing qualified immunity doctrine as a "reasonable mistake-of-law defense for public officials charged with unconstitutional conduct").
72. See Heien v. North Carolina, 135 S. Ct. 530, 534 (2014).
73. Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 479 (2011).
74. See, e.g., Donald A. Dripps, Why Gideon Failed: Politics and Feedback Loops in the Reform of Criminal Justice, 70 Wash. & LEE L. Rev. 883, 902 (2013) ("The basic liberal narrative about constitutional criminal procedure celebrates the Warren Court's project of reforming the criminal process to advance liberty and equality, and condemns the Supreme Court's pro-prosecution turn in the years since Warren's retirement in 1969.").
75. See, e.g., United States v. Leon, 468 U. S. 897, 918-19 (1984);
76. Stone v. Powell, 428 U. S. 465, 492 (1976) (observing "the absence of supportive empirical evidence" that the exclusionary rule deters police misconduct).
77. See also William C. Heffernan, The Fourth Amendment Exclusionary Rule as a Constitutional Remedy, 88 GEO. LJ. 799, 871-72 (2000) (pointing out the lack of empirical evidence supporting the deterrent effects of the exclusionary rule, but arguing that there are nonetheless sound reasons to believe that the exclusionary rule is more effective than other currently available remedies).
78. See, e.g., Leon, 468 U. S. at 922 (holding that exclusionary rule does not apply when police act in reasonable reliance on a subsequently invalidated search warrant, since exclusion would not deter in these circumstances);
79. United States v. Janis, 428 U. S. 433, 454 (1976) ("[Exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion. ");
80. United States v. Calandra, 414 U. S. 338, 351 (1974) ("Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.").
81. See Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citing earlier cases, none of which actually maintain that deterrence is the exclusive purpose of the rule).
82. U. S. 586 (2006)
83. See, e.g., David A. Moran, The End of the Exclusionary Rule, Among Other Things: The Roberts Court Takes on the Fourth Amendment, 2006 CATO Sup. Ct. Rev. 283, 284 ("[Hudson] calls into question the entire rationale of the exclusionary rule, not just in the knock-and-announce context, but for all types of Fourth Amendment violations.").
84. Davis v. United States, 131 S. Ct. 2419, 2429 (2011) (holding that evidence obtained by police conduct that relies on binding, but later overruled, appellate precedent is not subject to the exclusionary rule);
85. Herring v. United States, 555 U. S. 135, 147-48 (2009) (holding that police mistakes resulting from negligent police recordkeeping are not subject to the exclusionary rule).
86. See, e.g., United States v. Patane, 542 U. S. 630, 640 (2004) (plurality opinion) ("[T]he Self-incrimination Clause contains its own exclusionary rule.");
87. Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 YALE L. J. 447, 450 (2002) ("Unlike the Fourth Amendment proscription on unreasonable searches and seizures, which is a direct restraint on police conduct that courts enforce through a judicially created exclusionary rule, the Fifth Amendment privilege is simply an exclusionary rule."
88. See Patane, 542 U. S. at 639 (characterizing Miranda warnings as "prophylactic rules" that "sweep beyond the actual protections of the Self-incrimination Clause");
89. See Montejo v. Louisiana, 556 U. S. 778, 796-97 (2009);
90. See, e.g., AKHIL AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 20-31 (1997);
91. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. ILL. L. Rev. 363, 365 ("The exclusionary rule is significantly flawed as a deterrent device, especially when compared to more direct sanctions on the police and police departments.").
92. See, e.g., Champion v. Ames (The Lottery Case), 188 U. S. 321 (1903).
93. See Jack Balkin, Commerce, 109 MICH. L. REV. 1, 28 & n. 101 (2010).
94. See, e.g., Kenneth S. Abraham, Four Conceptions of Insurance, 161 U. Pa. L. Rev. 653, 666 (2013) (distinguishing judicial regulation from "mere adjudication" by the "uniform and broad application" of certain judicial interpretations).
95. For a survey of different definitions of regulation, and an attempt to systematize them, see Julia Black, Critical Reflections on Regulation, 27 Austl. J. Legal. Phil. 1, 11-21 (2002).
96. See, e.g., Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1275, 1276 (2006);
97. Henry Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 2-3 (1975).
98. See, e.g., William J. Stuntz, Miranda's Mistake, 99 Mich. L. Rev. 975, 978 (2001) (characterizing Miranda as "a bad regulatory scheme [that] removed all possibility of developing a good one");
99. William J. Stuntz, Terry's Impossibility, 72 ST. JOHN'S L. REV. 1213, 1215 (1998) ("Terry doctrine seems to represent a serious attempt to regulate streetlevel policing, to forbid bad police encounters while permitting good ones.");
100. William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 781, 832 (2006) ("[T]he best thing to do with the massive body of Fourth Amendment privacy regulation, together with the equally massive body of law on the scope and limits of the exclusionary rule, is to wipe it off the books. Let states experiment with different regulatory regimes.").
101. See generally The Political Heart of Criminal Justice: Essays on the Themes of William J. Stuntz (Michael Klarman, David Skeel & Carol Steiker eds., 2014).
102. For one of many other examples, see Darryl Brown, The Warren Court, Criminal Procedure Reform, and Retributive Punishment, 59 WASH. & LEE L. REV. 1411, 1411-12 (2002).
103. See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 525-27 (2001) (discussing the interaction of state actors with the expansion of criminal liability);
104. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L. J. 1, 3-4 (1998)
105. [hereinafter Stuntz, Uneasy Relationship] (emphasizing "the larger system" in which criminal procedure rules are embedded).
106. Stuntz, Uneasy Relationship, supra note 97, at 3.
107. Rachel A. Harmon, The Problem of Policing, 110 MiCH. L. Rev. 761, 764 (2012) (asking "not how the Constitution constrains the police but how law and public policy can best regulate the police").
108. See, e.g., DAVID ALAN SKLANSKY, DEMOCRACY AND THE POLICE 5 (2008) ("Because thinking about criminal procedure has tended to focus on the questions taken up by courts, the unfortunate result has been not just that judges have largely failed to consider the systemic requirements for democratic policing, but that most of the rest of us have, too.");
109. Seth Stoughton, Policing Facts, 88 TUL. L. Rev. 847, 848-49 (2014) (arguing that many of the Supreme Court's decisions are based on empirically inaccurate assumptions about policing).
110. See generally Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens TO Today (1999);
111. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV. L. REV. 1791, 1796 (2009) ("[W]e have systems of public law, international and constitutional, which cast the state as the subject (and product) rather than solely the source of law.");
112. Alice Ristroph, Covenants for the Sword, 61 U. TORONTO L. J. 657, 666 (2011) (discussing the challenges presented by limits imposed by the sovereign upon its own power).
113. E.g., Richard A. Bierschbach & Stephanos Bibas, Constitutionally Tailoring Punishment, 112 MICH. L. REV. 397, 399, 418-21 (2013) (detailing limits of substantive rights litigation and advocating for procedural reform).
114. See, e.g., DAVID LEWIS, PRESIDENTS AND THE POLITICS OF AGENCY DESIGN 4 (2003) (suggesting that a study of administrative structure is necessary to understand why agencies are either "too 'politicized'" or "pathologically unresponsive");
115. Terry Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267 (John E. Chubb & Paul E. Peterson eds., 1989) ("American public bureaucracy is not designed to be effective.");
116. Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. POL. ECON. 132, 151-53 (1988) (discussing congressional committee system and its facilitation of "pork barrel" politics).
117. See, e.g., Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. PA. L. REV. 1, 2-3 (2014) (describing congressional dysfunction and its implications for administrative agencies).
118. Stephen J. Schulhofer, Criminal Justice, Local Democracy, and Constitutional Rights, 111 Mich. L. Rev. 1045, 1050-58 (2013)
119. David Alan Sklansky, Killer Seatbelts and Criminal Procedure, 119 Harv. L. Rev. Forum 56, 57 (2006)
120. ALBERT CAMUS, LETTERS TO A GERMAN FRIEND 28 (1960) ("[Refusing to accept that despair and that tortured world, I merely wanted men to rediscover their solidarity in order to wage war against their revolting fate.").
121. See, e.g., John Griffiths, Ideology in Criminal Procedure or a "Third Model" of the Criminal Process, 79 Yale L. J. 359, 371 (1970) (considering a "Family Model" to replace the adversarial approach in Packer's models).
122. See Herbert Packer, The Limits of the Criminal Sanction 5 (1968).
123. See Hadar Aviram, Packer in Context: Formalism and Fairness in the Due Process Model, 36 LAW & SOC. INQUIRY 237, 238-45 (2011) (reviewing critiques of Packer's models).
124. In re Winship, 397 U. S. 358, 364 (1970) ("Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").
125. See, e.g., Alleyne v. United States, 133 S. Ct. 2151, 2162 (2013) ("[T]he essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.").
126. See also Kate Stith, Crime and Punishment Under the Constitution, 2004 SUP. CT. REV. 221, 221 ("[T]he essential holdings of Apprendi v. New Jersey and Blakely v. Washington seem constitutionally obvious.... [W]hen a legislature decides that certain conduct warrants an increase in criminal punishment, such conduct is part of the 'crime' that must be charged and proven in accordance with the requirements of the Fifth, Sixth, and Fourteenth Amendments of the Constitution. " (internal citations omitted)).
127. Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N. Y. U. L. REV. 112, 121 (2007).
128. Cf. Hiibel v. Sixth Judicial Dist. Ct., 542 U. S. 177, 188-89 (2004) (sustaining against a Fourth Amendment challenge a statute that penalized failure to identify oneself to a police officer, but noting specifically that the statute required the officer to have a Fourth Amendment justification to stop and request identification).
129. See Griswold v. Connecticut, 381 U. S. 479, 484-86 (1965) (striking down a ban on the use of contraception);
130. see also Nadia B. Soree, Whose Fourth Amendment and Does It Matter? A Due Process Approach to Fourth Amendment Standing, 46 Ind. L. Rev. 753, 777 (2013) ("The Fourth Amendment may act as a direct check on the legislature since, as a practical matter, the legislature may refrain from criminalizing conduct that would be difficult to detect absent a Fourth Amendment violation. ").
131. See Winship, 397 U. S. at 364 (interpreting the Fourteenth Amendment Due Process Clause to require the state to prove each element of a crime beyond a reasonable doubt).
132. This premise is at least as old as Boyd v. United States, 116 U. S. 616 (1886), where the Court applied the Fourth Amendment in a civil forfeiture proceeding but felt it necessary to emphasize that the government action, "though technically a civil proceeding, is in substance and effect a criminal one."
133. See, e.g., Ferguson v. City of Charleston, 532 U. S. 67, 74 n. 7 (2001) ("[I]n limited circumstances, a search unsupported by either warrant or probable cause can be constitutional when 'special needs' other than the normal need for law enforcement provide sufficient justification. ").
134. See Miranda v. Arizona, 384 U. S. 436 (1966);
135. Massiah v. United States, 377 U. S. 201 (1964);
136. Mapp v. Ohio, 367 U. S. 643 (1961).
137. See Mapp, 367 U. S. at 646-47 ("[I]n Boyd v. United States... this Court held that the doctrines of [the Fourth and Fifth Amendments] 'apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property...'"
138. (quoting Boyd, 116 U. S. at 630)).
139. Boyd, 116 U. S. at 618, 620.
140. See, e.g., Hale v. Henkel, 201 U. S. 43, 70 (1906) (corporate documents);
141. Shapiro v. United States, 168 F.2d 625, 626 (3d Cir. 1948) (required records);
142. see also Warden v. Hayden, 387 U. S. 294, 300-01 (1967) (abolishing "mere evidence" rule that had been derived from Boyd).
143. See, e.g., Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307, 312-13 (1998).
144. See, e.g., Riley v. California, 134 S. Ct. 2473, 2494-95 (2014) (applying Boyd to privacy protection for cell phones);
145. Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013) (similarly referencing Boyd for its discussion of sacred areas of privacy);
146. United States v. Hubbell, 530 U. S. 27, 51 (2000) (Thomas, J., concurring) (citing Boyd for its discussion of the common law).
147. See, e.g., Schick v. Reed, 419 U. S. 256, 264 (1974) (finding the pardon power to be plenary and allowing the President to place any conditions on a pardon "which do not in themselves offend the Constitution").
148. See, e.g., Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: "Here I Go Down that Wrong Road Again," 74 N. C. L. Rev. 1559, 1564 (1996) ("Limits on searches and interrogation, like juries and the right to confront adverse witnesses, are only means to the larger end of preventing punishment not authorized by judgment rendered after a fair trial.").
149. See, e.g., Thomas O. Main, The Procedural Foundation of Substantive Law, 87 Wash. U. L. Rev. 801, 802 (2010) (arguing that "[procedure is an instrument of power that can, in a very practical sense, generate or undermine substantive rights," and illustrating the claim with reference to employment discrimination law).
150. Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 STAN. L. REV. 547, 602 (1997).
151. See Boyd v. United States, 116 U. S. 616, 621-22 (1886).
152. See, e.g., STUNTZ, supra note 33, at 209;
153. Ronald J. Allen, Foreword: Montana v. Egelhoff-Reflections on the Limits of Legislative Imagination and Judicial Authority, 87 J. CFUM. L. & CRIMINOLOGY 633, 633-34 (1997);
154. John C. Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions and Burden of Proof in the Criminal Law, 88 Yale L. J. 1325, 1331 (1979).
155. William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1042 (1995).
156. Boyd, 116 U. S. at 623.
157. Cf. Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809, 815 (2015) (discussing the substantive powers exercised through arrests).
158. For illustrations, see Alice Ristroph, Just Violence, 56 Ariz. L. Rev. 1017, 1020-21 (2014).
159. Jean Hampton, Retribution and the Liberal State, 1994 J. CONTEMP. LEGAL ISSUES 117, 124;
160. see also Andrew von Hirsch, Doing Justice: The Choice of Punishments 45-46 (1976);
161. Kent Greenawalt, Punishment, 74 J. Crim L. & CRIMINOLOGY 343, 347 (1983) (describing retributivism as the view "that punishment is justified because people deserve it").
162. Jeffrie G. Murphy, Does Kant Have a Theory of Punishment?, 87 COLUM. L. REV. 509, 510-11 (1987) ("A complete theory of punishment must concern itself not merely with the moral desirability of the goals sought by punishment... but also with the equally important question of whether the pursuit of these goals is part of the legitimate business of the state-whether these goals are properly realized through the mechanism of state coercion. ").
163. See, e.g., Heidi M. Hurd, What in the World is Wrong?, 1994 J. Contemp. Legal Issues 157, 162 (identifying moral desert as a condition for punishment).
164. see Louis Michael Seidman, Factual Guilt and the Burger Court: An Examination of Continuity and Change in Criminal Procedure, 80 Colum. L. REV. 436, 483-91 (1980).
165. See, e.g., Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986) ("[T]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence.").
166. See Herrera v. Collins, 506 U. S. 390, 393 (1993) (claim of actual innocence based on newly discovered evidence not sufficient grounds for independent habeas claim).
167. See Texas v. Johnson, 491 U. S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.");
168. Cohen v. California, 403 U. S. 15, 26 (1971) ("[A]bsent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.").
169. See Arizona v. Fulminante, 499 U. S. 279, 309-10 (1991)
170. (citing Tumey v. Ohio, 273 U. S. 510 (1927)) ("The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial.").
171. See In re Winship, 397 U. S. 358, 364 (1970).
172. See Alice Ristroph, Respect and Resistance in Punishment Theory, 97 Cal. L. REV. 601, 613-15 (2009).
173. Thomas Hobbes, Leviathan 214 (Richard Tuck ed., 1991) (1651).
174. James Martel, The Radical Promise of Thomas Hobbes: The Road not Taken in Liberal Theory, PROJECT MUSE: THEORY & EVENT (2000), https://muse.jhu.edu/journals/theory-and-event/v004/4.2martel.html [http://perma.cc/FQ93-Y525].
175. See I. F. Stone, The Trial of Socrates 184 (1989).
176. See Norman Mailer, The Executioner's Song 619 (1979).
177. See, e.g., JACOB ADLER, URGINGS OF CONSCIENCE: A THEORY OF PUNISHMENT (1991);
178. Michael S. Green, The Privilege's Last Stand: The Privilege Against Self-incrimination and the Right to Rebel Against the State, 65 Brook. L. Rev. 627, 686-87 (1999) (contrasting John Locke's punishment theory to Hobbes, in part by emphasizing that for Locke the guilty have a duty to submit to punishment).
179. See, e.g., Joseph Raz, The Authority of Law: Essays on Law and Morality 269 (1979).
180. For more detailed philosophical discussions, see Alice Ristroph, The Imperfect Legitimacy of Punishment, in HOBBES TODAY: INSIGHTS FOR THE TWENTY-FIRST CENTURY (Sharon Lloyd ed., 2012);
181. David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634, 1635-36 (2009).
182. See, e.g., John Griffiths, Ideology in Criminal Procedure or A Third "Model" of the Criminal Process, 79 Yale L. J. 359 (1970).
183. See, e.g., Penson v. Ohio, 488 U. S. 75, 84 (1988) ("[T]he right to be represented by counsel is among the most fundamental of rights...
184. For a powerful account of both the importance and the limits of the defense lawyer, see Alexandra Natapoff, Gideon Skepticism, 70 Wash. & Lee L. Rev. 1049, 1050-51 (2013) ("Ever since Gideon v. Wainwright proclaimed that 'any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him, ' the Supreme Court has quietly established the inverse proposition: if a person had competent counsel, his conviction was probably fair."
185. (quoting Gideon v. Wainwright, 372 U. S. 335, 344 (1963))).
186. 372 U. S. 335 (1963).
187. See Anthony Lewis, Gideon's Trumpet 208 (1964).
188. See Bruce R. Jacob, Memories of and Reflections About Gideon v. Wainwright, 33 STETSON L. Rev. 181, 214-15 (2003) ("Turner, Gideon's attorney at the second trial, says Gideon received the assistance of fellow inmate, former attorney, and later municipal judge, Joseph A. Peel, Jr., a Stetson law graduate! According to Turner, Peel, Gideon's cellmate, stood over his shoulder as Gideon wrote and told him what to say.").
189. See Hill v. McDonough, 547 U. S. 573, 581 (2006) (describing "the practical reality of capital litigation tactics: inmates file [habeas and § 1983 actions] intending to forestall execution").
190. As the Supreme Court has recognized, litigation is a form of political expression. See, e.g., NAACP v. Button, 371 U. S. 415, 429 (1963).
191. Antony Duff, Answering for Crime 15-18 (2009).
192. Vesla Weaver, The Only Government I Know: How the Criminal Justice System Degrades Democratic Citizenship, Bos. Rev., June 10, 2014, http://ostonreview.net/us/vesla-m-weaver-citizenship-custodial-state-incarceration [http://perma.cc/952Z-GBQT].
193. Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N. Y. U. L. Rev. 1449, 1449-53 (2005).
194. See Paul G. Cassell & Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. REV. 839, 859 (1996) (presenting evidence that about eighty-four percent of suspects waive their Miranda rights).
195. Janet Moore, Maria Sandys & Raj Jayadev, Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 ALB. L. REV. 1281, 1281 (2015).
196. See U. S. Comptroller Gen., U. S. Accr. Off., Impact of the Exclusionary Rule on Federal Criminal Prosecutions 8, 10 (1979).
197. See, e.g., Ben Depoorter, The Upside of Losing, 113 Colum. L. Rev. 817 (2013);
198. Jules Lobel, Courts as Forums for Protest, 52 UCLA L. Rev. 477 (2004);
199. Jules Lobel, Losers, Fools, and Prophets: Justice as Struggle, 80 CORNELL L. REV. 1331 (1995)
200. [hereinafter Lobel, Losers, Fools, and Prophets];
201. Douglas Ne Jaime, Winning by Losing, 96 Iowa L. Rev. 941 (2011).
202. Lobel, Losers, Fools, and Prophets, supra note 195, at 1332 ("In many losing cases... the primary point of the cases is to inspire political action. ").
203. Aziz Z. Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 DUKE L. J. (forthcoming 2015).
204. See Anthony O'Rourke, The Political Economy of Criminal Procedure Litigation, 45 GA. L. REV. 721, 725-26 (2011) (arguing that defendants' power to shape constitutional law has been diminished by a broad right to counsel, because more claims are litigated and the Court has gained "more freedom to select cases that present a constitutional question in a way that conforms to the ideological preferences of the Court's Justices").
205. See Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 Wm. & Mary L. Rev. 639, 643 (1981);
206. see also Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 2 (1979) ("Judges have no monopoly on the task of giving meaning to the public values of the Constitution, but neither is there reason for them to be silent.... Adjudication is the social process by which judges give meaning to our public values.");
207. Lobel, Losers, Fools, and Prophets, supra note 195, at 529-31.
208. See, e.g., Roberto Mangabeira Unger, What Should Legal Analysis Become? 106-10 (1996) (discussing obsession with judges and adjudication);
209. Jeremy Waldron, Law and Disagreement (1999).
210. See A. Benjamin Spencer, The Law School Critique in Historical Perspective, 69 WASH. & LEE L. REV. 1949, 2026-39 (2012) (criticizing the case method and the focus on adjudication in legal pedagogy).
211. see also Louis Bilionis, Legitimating Death, 91 Mich. L. Rev. 1643, 1662-63 (1993) ("[T]he bookish exercise that one might label norm articulation is doubtless an essential predicate to constitutional adjudication. " (internal quotation marks and citation omitted)). 207 Cf. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703, 708 (1975) ("The dominant norms of decision are those large conceptions of governmental structure and individual rights that are at best referred to, and whose content is scarcely at all specified, in the written Constitution-dual federalism, vested rights, fair procedure, equality before the law.").
212. See, e.g., Lawrence Rosenthal, Originalism in Practice, 87 IND. L. J. 1183, 1183-84 (2012) (declaring that "[o]riginalism is ascendant" and detailing its claims of determinacy).
213. Todd E. Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & POLITICS 123, 124 (2011).
214. See, e.g., Wyoming v. Houghton, 526 U. S. 295, 304 (1999);
215. Davis v. United States, 512 U. S. 452, 461 (1994);
216. McNeil v. Wisconsin, 501 U. S. 171, 180-81 (1991);
217. California v. Acevedo, 500 U. S. 565, 574 (1991).
218. See, e.g., Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011).
219. Greene argues that the cases in the anticanon, such as Dred Scott v. Sanford, 60 U. S. 393 (1857)
220. and Plessy v. Ferguson, 163 U. S. 537 (1896), are not characterized by exceptionally poor legal reasoning; to the contrary, "the traditional modes of legal analysis arguably support the results in anticanon cases."
221. See Mark A. Graber, Dred Scott and the Problem of Constitutional Evil 4 (2006).
222. The classic account of racial injustice as the catalyst that spurred the Court to regulate criminal procedure in the states is Michael J. Klarman, The Racial Origins of Criminal Procedure, 99 MICH. L. REV. 48 (2000).
223. See, e.g., Whren v. United States, 517 U. S. 806, 813 (1996) ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.");
224. see also McCleskey v. Kemp, 481 U. S. 279, 292-99 (1986) (rejecting equal protection challenge to racial disparities in capital sentencing).
225. 481 U. S. 279 (1986).
226. 517 U. S. 806 (1996).
227. See generally Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLAL. REV. 1 (1991). Whatever the benefits of starting anew in the regulatory enterprise, a world without Fourth Amendment adjudication would be a world without an important forum for debating normative principles of policing.
228. See, e.g., Stone v. Powell, 428 U. S. 465, 486 (1976) ("[The exclusionary rule] is not calculated to redress the injury to the privacy of the victim of the search or seizure.");
229. United States v. Calandra, 414 U. S. 338, 347 (1974) ("The ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late."
230. (quoting Linkletter v. Walker, 381 U. S. 618, 637 (1965))).
231. Linkletter, 381 U. S. at 637.
232. Boyd v. United States, 116 U. S. 616 (1886), which did not mention deterrence at all.
233. See, e.g., Hudson v. Michigan, 547 U. S. 586, 596-97 (2006) (declining to apply the exclusionary rule to violations of the knock-and-announce rule, on the grounds that
234. Nix v. Williams, 467 U. S. 431, 445-46 (1984) (adopting an "inevitable discovery" exception to the exclusionary rule, on the rationale that if police know that evidence will be discovered eventually, they are unlikely to violate the Constitution in an effort to obtain the evidence and thus deterrence is unnecessary);
235. Calandra, 414 U. S. at 351-52 (declining to apply the exclusionary rule to grand jury proceedings, in part because it would produce only "a speculative and undoubtedly minimal advance in the deterrence of police misconduct").
236. See, e.g., Stone, 428 U. S. at 486.
237. Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 593 (1981) ("Legal argument can be made only after a fact pattern is characterized by interpretive constructs.").
238. See, e.g., United States v. Leon, 468 U. S. 897, 906 (1984) ("The wrong condemned by the Amendment is 'fully accomplished' by the unlawful search or seizure itself."
239. (quoting United States v. Calandra, 414 U. S. 338, 354 (1974))).
240. See, e.g., Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209, 1252-53 (2010) ("Like the rest of the Bill of Rights, the First Amendment is a restriction on federal governmental action. But unlike the rest of the Bill of Rights, the First Amendment is written in the active voice, with a clear and express subject. Its ringing first words are: 'Congress shall make no law....'").
241. Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005, 1034-35 (2011).
242. See, e.g., Patterson v. Colorado, 205 U. S. 454, 462 (1907) (stating that the freedom of speech and freedom of press clauses prevent "previous restraints" on speech but "do not prevent the subsequent punishment of such"
243. (quoting Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 313 (1825)))
244. abrogated by Bridges v. California, 314 U. S. 252 (1941).
245. See Jenia Iontcheva Turner, The Exclusionary Rule as a Symbol of the Rule of Law, 67 SMUL. REV. 821, 821 (2014).
246. See Weeks v. United States, 232 U. S. 383, 391-92 (1914) ("The effect of the Fourth Amendment is to put the courts of the United States and Federal officials... under limitations and restraints as to the exercise of [their] power and authority-").
247. See Richard M. Re, The Due Process Exclusionary Rule, 127 Harv. L. Rev. 1885, 1890 (2014);
248. For earlier due process defenses of the exclusionary rule, see Lane V. Sunderland, The Exclusionary Rule: A Requirement of Constitutional Principle, 69 J. Crim. L. & Criminology 141, 150 (1978) (arguing that the exclusionary rule is necessary "[s]imply because the due process clause requires it, independently of the efficacy of the rule as a deterrent, or independently of the comparative efficacy of alternative remedies");
249. James Boyd White, Forgotten Points in the "Exclusionary Rule" Debate, 81 MICH. L. REV. 1273, 1274 (1983) ("The historical roots of exclusion lie in a conception of property which holds that even where a search is procedurally reasonable the government simply has no right to seize the property of the citizen for use against him in a criminal proceeding.").
250. See, e.g., Maryland v. King, 133 S. Ct. 1958, 1969 (2013) ("In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred 'some quantum of individualized suspicion... [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion. '"
251. (quoting United States v. Martinez-Fuerte, 428 U. S. 543, 560-61 (1976)));
252. see also Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEM. L. REV. 483, 485-86 (1994) ("Although the concept of individualized suspicion has an explicit constitutional basis only in the particularity requirement contained in the Warrant Clause of the Fourth Amendment, it historically has been required of all searches and seizures."). Courts still occasionally refer to "the warrant requirement," but warrants are at best a factor tending to establish reasonableness rather than a requisite component of it.
253. See, e.g., Tennessee v. Garner, 471 U. S. 1, 7 (1985) (rejecting argument that once probable cause is established, "the Fourth Amendment has nothing to say about how [a] seizure is made");
254. New Jersey v. T. L. O., 469 U. S. 325, 340-41 (1985)
255. see also Go-Bart Importing Co. V. United States, 282 U. S. 344, 357 (1931)
256. T. L. O., 469 U. S. at 337 ("Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.").
257. Ohio v. Robinette, 519 U. S. 33, 39 (1996) ("We have long held that the touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances." (internal citations omitted)).
258. Mapp v. Ohio, 367 U. S. 643, 653 (1961)
259. (quoting United States v. Rabinowitz, 339 U. S. 46, 63 (1950)).
260. Cf. Brendlin v. California, 551 U. S. 249, 255 (2007) ("When the actions of the police do not show an unambiguous intent to restrain or when an individual's submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not.").
261. See Terry v. Ohio, 392 U. S. 1, 19 n. 16 (1968)
262. Florida v. Bostick, 501 U. S. 429, 439 (1991).
263. See United States v. Drayton, 536 U. S. 194, 203-04 (2002) ("When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice.");
264. I. N. S. V. Delgado, 466 U. S. 210, 212-13 (1984) ("The agents displayed badges, carried walkie-talkies, and were armed, although at no point during any of the surveys was a weapon ever drawn.... During the survey, employees continued with their work and were free to walk around within the factory.").
265. Cf. Florida v. Royer, 460 U. S. 491, 497 (1983) ("Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure...
266. See, e.g., United States v. Washington, 151 F.3d 1354, 1357 (11th Cir. 1998)
267. Drayton, 536 U. S. at 202-03.
268. See, e.g., Schneckloth v. Bustamonte, 412 U. S. 218, 228 (1973) ("[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.").
269. Zap v. United States, 328 U. S. 624, 628-29 (1946).
270. 328 U. S. at 628-29
271. See, e.g., Bumper v. North Carolina, 391 U. S. 543, 550 (1968)
272. Schneckloth, 412 U. S. at 231-32
273. (quoting Miranda v. Arizona, 384 U. S. 436, 477 (1966)).
274. Miranda, 384 U. S. at 467 ("[Wjithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.").
275. see also North Carolina v. Butler, 441 U. S. 369, 373 (1979) (holding that an express statement is not necessary to establish valid waiver).
276. See, e.g., Moran v. Burbine, 475 U. S. 412, 423-24 (1986) (finding that police failure to notify a suspect that his attorney was trying to reach him did not invalidate the suspect's waiver of his Miranda rights).
277. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010)